Congress’s supine ceding of its powers, and the Obama administration’s usurpation of both legal and extralegal powers, is worrisome. But what is particularly disturbing is the quiet, polite, workaday manner with which the administration goes about its business — and with which the American public accepts it. As Christopher Hitchens once put it, “The essence of tyranny is not iron law; it is capricious law.” Barack Obama makes a virtue out of that caprice, having articulated for his judicial nominees not a legal standard but a political standard requiring sympathy for politically favored groups: African American, gay, disabled, old, in his words.
We have to some extent been here before. It is a testament to the success of free-market ideas that it is impossible to imagine President Obama making the announcement that President Richard Nixon did on August 15, 1971: “I am today ordering a freeze on all prices and wages throughout the United States.” President Nixon created not one but two IPABs, the Pay Board and the Price Commission, which were to be entrusted with managing the day-to-day operations of the U.S. economy. President Nixon, too, was empowered by a Congress that invested him with that remarkable authority, through the Economic Stabilization Act of 1970, whose provisions were to be invoked during times of economic emergency. There was no economic emergency in 1971, but it is a nearly iron-clad rule of the presidency that powers vested will be powers used. That President Obama has adopted President Nixon’s approach but limited himself to health care might be considered progress if he had not adopted as a general principle one of Nixon’s unfortunate maxims: When the president does it, it isn’t illegal. President Nixon’s lawlessness was sneaky, and he had the decency to be ashamed of it. President Obama’s lawlessness is as bland and bloodless as the man himself, and practiced openly, as though it were a virtue. President Nixon privately kept an enemies list; President Obama publicly promises that “we’re gonna punish our enemies, and we’re gonna reward our friends.”
Barack Obama’s administration is unmoored from the institutions that have long kept the imperial tendencies of the American presidency in check. That is partly the fault of Congress, which has punted too many of its legislative responsibilities to the president’s army of faceless regulators, but it is in no small part the result of an intentional strategy on the part of the administration. He has spent the past five years methodically testing the limits of what he can get away with, like one of those crafty velociraptors testing the electric fence in Jurassic Park. Barack Obama is a Harvard Law graduate, and he knows that he cannot make recess appointments when Congress is not in recess. He knows that his HHS is promulgating regulations that conflict with federal statutes. He knows that he is not constitutionally empowered to pick and choose which laws will be enforced. This is a might-makes-right presidency, and if Barack Obama has been from time to time muddled and contradictory, he has been clear on the point that he has no intention of being limited by something so trivial as the law.